In the Matter of the Petition by THE GEOLOGICAL SOCIETY OF AMERICA, 3300 Penrose Place, Boulder, Colorado 80301, Proposed Revocation of Second-Class Mail Privileges for "BIBLIOGRAPHY AND INDEX OF GEOLOGY" P.S. Docket No. 4/150 July 26, 1976 Quentin E. Grant Administrative Law Judge Shafroth and Toll by Frank H. Shafroth, Esq. Denver, Colorado for Petitioner Grayson M. Poats, Esq. Arpad de Kovacsy, Esq. United States Postal Service Washington, D.C. for Respondent Before : Quentin E. Grant , Administrative Law Judge
This proceeding was initiated by petitioner pursuant to 39 C.F.R., Part 954, to contest the ruling of respondent, represented by the Manager of the Mail Classification Division, Finance Department, U. S. Postal Service (hereinafter referred to as the "Manager"), which on January 2, 1976 annulled, subject to the outcome of this proceeding, petitioner's second class mail privileges for its publication, Bibliography and Index of Geology (hereinafter sometimes referred to as the "publication").
The reasons for the Manager's ruling are set forth at length in the enclosure thereto. Their sum is that the publication does not contain a variety of original articles and, therefore, does not conform to the controlling definition of "periodical" set forth as follows in Houghton v. Payne , 194 U.S. 88 (1904):
"A periodical, as ordinarily understood, is a publication appearing at stated intervals, each number of which contains a variety of original articles by different authors, devoted either to general literature of some special branch of learning or to a special class of subjects. Ordinarily each number is incomplete in itself, and indicates a relation with prior or subsequent numbers of the same series. It implies a continuity of literary character, a connection between the different numbers of the series in the nature of the articles appearing in them, whether they be successive chapters of the same story or novel or essays upon subjects pertaining to general literature. If, for instance, one number were devoted to law, another to medicine, another to religion, another to music, another to painting, etc., the publication could not be considered as a periodical, as there is no connection between the subjects and no literary continuity. It could scarcely be supposed that ordinary readers would subscribe to a publication devoted to such an extensive range of subjects."
Further, the Manager stated that the publication is, in fact, a reference book.
Petitioner took timely appeal from the Manager's ruling, a hearing was held at which both parties presented evidence, and they have submitted proposed findings of fact and conclusions of law.
The parties agree that the only issue in this proceeding is whether the publication is a "periodical publication" within the meaning of the applicable statutes and regulations governing second class mail privileges (Resp. Br., p. 3; Petit. proposed finding of fact No. 1).
Petitioner's arguments in opposition to the proposed annulment are, briefly, as follows:
1. The publication is a periodical within the meaning of the applicable statute and regulations.
2. The publication contains a variety of original articles by different authors, devoted to branches of the earth sciences. Each number of the publication is incomplete of itself, and indicates a relation with prior or subsequent numbers of the same series.
3. Even if the publication is not a periodical "as ordinarily understood" it is a "non-descript publication" published according to the mandate of the petitioner's congressional charter to widely disseminate geological information. Public policy should encourage the widest possible dissemination of the information contained in the publication for use by the scientific community and by the general public.
1. Petitioner is a nonprofit corporation incorporated under the laws of the State of New York in 1929 as an offshoot of American Academy for Advancement of Science, founded in 1888.
2. The purposes of the corporation are the advancement of the earth sciences, the publication of work pertaining to research in earth science both in periodical and book form, scientific monographs and bulletin articles, and current awareness publications such as "Bibliography and Index of Geology" (Tr. 19).
3. Petitioner has a membership of approximately 12,000 representing almost every country. The society is dedicated to the advancement of earth science (Tr. 20).
4. The revenues of the society are derived from sale of its publications and from registration fees charged for the scientific meetings which it holds (Tr. 22).
5. Petitioner publishes "Bibliography and Index of Geology" in cooperation with United States Geological Survey and American Geological Institute (Tr. 31-34).
6. The publication was first granted second class mail privileges in March, 1967 and has enjoyed such privileges since that date (Tr. 23).
7. The publication meets the basic qualifications set forth in Postal Service Manual 132.22 as to (a) frequency of issue, (b) issuance and mailing at a known office of publication; (c) content, and (d) list of subscribers.
8. On January 2, 1976 the Manager notified petitioner that second class mail privileges for the publication were being annulled, stating that the publication is not a periodical within the meaning of Postal Regulations because it does not contain a variety of original articles and is, in fact, a reference book.
9. Petitioner took this timely appeal from the Manager's ruling.
10. The publication is regularly issued in 12 monthly volumes. At the end of each year a compilation of the preceding 12 monthly issues is issued in 4 bound volumes (Tr. 5) which are mailed at fourth class, book rate (Tr. 25).
11. The publication was originated and published for the dissemination of information of a public character, the bulk of such information coming from the shelves of the U.S. Geological Survey, one of the most extensive libraries of earth science in the world (Tr. 31).
12. Considerable editorial effort and judgment are required in the compilation and publishing of the publication (Tr. 12, 14). These are supplied by approximately eight abstractors, or editors (Tr. 32).
13. The publication is unique in being the only one which keeps earth scientists currently aware of developments in their field (Tr. 29).
14. The publication has a total of 970 subscribers at a yearly subscription rate of $650 consisting of scientists, scientific libraries, oil company libraries and the U. S. Geological Survey (Tr. 29, 30).
15. The composition of each issue of the publication is substantially as follows:
a. Table of Contents (approximately 2 pages)
b. Preface (about 1/2 page containing an explanation of the contents).
c. List of Serials (approximately 5 pages listing titles and abbreviations of journals cited in the body of the publication).
d. Fields of Interest (upwards of 100 pages containing citations of articles pertaining to 29 fields of interest listed in the Table of Contents. Citations are listed alphabetically by author under each field of interest.) Attached, as Exhibit A, is a sample page from the Fields of Interest section.
e. Subject Index (upwards of 100 pages composed of brief entries in alphabetical order, utilizing a so-called "three-level system" for entries consisting of the designation of the field of interest, key words and names of authors.) Attached hereto as Exhibit B is a sample page from the Subject Index section.
f. Author Index (alphabetical list of authors whose articles are cited in the Fields of Interest section with the number of the particular field of interest under which the citation may be located).
16. As reference to the attached exhibits discloses, none of the information contained in the main portions of the publication is in the form of literary composition or nonfictional prose constituting articles as that term is commonly defined. As described in the preface to the publication, the citations included in the Fields of Interest section "consist of bibliographic information and, in some instances, include brief annotations."
17. One of petitioner's witnesses, Mr. Stephen Hoskin, testified that the citations are written in "scientific shorthand," entered on a computer tape referred to as "Georef," a data base for earth sciences (Tr. 33). From this data base, through a photo-composition process, the pages of the publication are printed (Tr. 62).
18. The citations, by means of the key words employed, enable users to determine whether articles of particular interest to them have been written in their particular field, or fields, of interest. The citations do not give the conclusions or results arrived at in the articles cited. Thus, they are not complete abstracts, because a user, to be certain of conclusions, or results, arrived at by the author must obtain and read the original article (Tr. 50, 51, 52).
1. The publication, as its name so clearly implies, is a bibliography and index. Although the entries therein convey information helpful to users they do not individually, or collectively, constitute articles as that term is commonly understood. Essentially, the publication is a sophisticated index and reference tool. Lacking a variety of original articles, it is not a periodical within the Houghton v. Payne definition, supra . See American Chemical Society , P.S. Docket No. 3/59, Postal Service Dec. 5/20/76.
For a recent court decision involving a similar publication and upholding the current application by USPS of the Houghton v. Payne definition, see Institute for Scientific Information v. USPS , U.S.D.C., ED Pa., June 15, 1976, Civil Action No. 75-3528.
2. The publication is not a "non-descript publication" for purposes of second class mail privileges. As pointed out in previous administrative decisions, for over 70 years only transportation guides have been recognized as "non-descript publications" which, despite their true character, are to be treated as periodicals and granted second class mail entry. See Shepard's Citations, Inc. , P.S. Docket No. 1/88, Init. Dec. 2/19/74; aff'd Postal Service Dec. 10/4/74.
3. Based on the foregoing findings of fact and conclusions of law, I find that petitioner is not entitled to second class mail privileges for its publication, Bibliography and Index of Geology .
4. The ruling by the Manager to annul the second class mail permit for the publication was correct and is hereby sustained.
Proposed findings of fact and conclusions of law submitted by the parties have been carefully considered. To the extent indicated herein they have been adopted; otherwise they have been rejected for reasons stated, or because they are contrary to or unsupported by the evidence, or because they are immaterial.